United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 805_95_2603

Appeal No. EAT/805/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 March 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MR E HAMMOND OBE

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MR P SINGH          APPELLANT

THE POST OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

ON BEHALF OF THE APPLICANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr P Singh. His appeal is against the unanimous decision of the Industrial Tribunal held at Stratford on 13 February and 10 May 1995.

In the extended reasons sent to the parties on 19 June 1995 the Tribunal explained their unanimous decision that Mr Singh was not unfairly dismissed by the Post Office, his former employers.

Mr Singh appealed by notice of appeal served on 31 July 1995. The purpose of the preliminary hearing is to determine whether his notice of appeal raises grounds of appeal which are reasonably arguable as points of law.

The position today is that Mr Singh has not attended to argue his appeal. He is not represented. Enquiries have been made at a telephone number given by him in his originating application, but without any response. In those circumstances we have decided to deal with his appeal in his absence, treating his notice of appeal as setting out representations which he would make if he were here.

Mr Singh's claim was that he had been unfairly dismissed from his position as a postman by the Royal Mail. He had been employed by them from 12 January 1987 until 22 January 1994. He said that he had been unfairly dismissed because his employers had acted inconsistently in applying their disciplinary procedures. He had been discriminated against and used as a scapegoat to set an example to other postmen. No one had been dismissed for the offence which he was accused of, that is, wilful delivery of mail, in the past. He had been dismissed, although he had a medical certificate to prove that on the day of the incident he was in pain.

He said that the Royal Mail did not show any compassion for the fact that he had worked for seven years. He had been dismissed in circumstances where others guilty of the same offence had not been.

The Post Office contested the claim. The Industrial Tribunal heard evidence and representations made by legal representatives. Mr Singh was represented by Counsel and the Post Office by a solicitor.

The Tribunal found that there had been dismissal for a conduct reason. There was no dispute that the disciplinary procedure had been conducted in a proper manner. The conduct reason was that he had been accused of wilfully delaying the delivery of mail. In paragraph 3 of their extended reasons the Tribunal identified two issues which they had to resolve. The first was whether, because of the failure of the Post Office to dismiss other persons convicted of this offence in the past, the treatment of Mr Singh, by dismissing him, could be said to be an inconsistent application on the disciplinary procedures; and, secondly, whether, in the circumstances of the case, dismissal was within the band of reasonable responses open to a reasonable employer.

The Tribunal found against Mr Singh on both points. They dealt with the alleged inconsistent application of the disciplinary procedures in paragraph 4 and concluded that the treatment of Mr Singh was not inconsistent. In paragraph 5 they concluded that they could not regard the dismissal of Mr Singh as outside the range of reasonable responses open to a reasonable employer.

In our view, the decision is without error of law. The Tribunal made findings of fact on the issues raised in the originating application and the notice of appearance. They reached conclusions which do not involve any misdirection as to the law. The Tribunal rightly directed themselves to the questions as to what was the reason for the dismissal, whether there was any procedural unfairness in it and whether the decision to dismiss was fair and reasonable in all the circumstances and within the range of reasonable responses.

We are unable to find an error of law in the decision. Looking at the notice of appeal, the ground of appeal was said to be this:

"The said Industrial Tribunal had the evidence before them that since the dismissal of the Appellant from the Royal Mail for the reason of `wilful delay of mail' that a number of other postmen had committed the same offence but were not dismissed. Therefore I believe that the decision of the said Industrial Tribunal was perverse. I believe that a reasonable Tribunal in reaching its decision will have taken into consideration that in a comparative situation Mr Singh has been accorded a grossly less favourable treatment than white postmen for the same offence from the same office.

Additionally, there is no reference in the said tribunal's decision ... that they had taken into consideration that `since the instituted fresh disciplinary procedure' there has been white postmen who had wilfully delayed the mail but were not dismissed from their job."

There is no arguable error of law revealed in those grounds of appeals. Mr Singh's claim was not one of race discrimination. It was one of unfair dismissal. The fact that, since the Industrial Tribunal decision, other events had occurred, such as the treatment of other postmen differently on grounds of wilful delay of mail, cannot affect the validity of this decision. The references to less favourable treatment of him and of white postmen appears to us to raise a new matter which was not complained of in the IT1 and, therefore, was not dealt with in the findings of fact before the Industrial Tribunal.

In those circumstances that point is an attempt to raise a new issue, which was not in the original proceedings. It is not permissible to raise new issues on appeal, which would involve fresh evidence and findings of fact.

For all those reasons, the appeal is dismissed because there is no arguable point of law which would justify a full hearing.